FORT WORTH — A state district judge testified Friday that she doesn’t know how the wrong jury charge got delivered to jurors in a $26 million lawsuit against American Airlines over the sexual assault of a flight attendant in 2018.
Nor, the judge testified, does she know what happened to the correct jury form after she read it in open court, gave copies to the 12 jurors and the lawyers for both sides, signed the original and instructed a staff member to take it to the jury room when the jurors began their deliberations May 9, so they’d have it to complete the part containing the verdict form if and when they reached their decision.
“I don’t know why it was not delivered,” Tarrant County District Judge Kimberly Fitzpatrick testified, in a rare appearance by a judge as a witness in a case over which she’s presiding. She was called by lawyers for Kimberly Goesling, the plaintiff in the suit, in a hearing on their motion to have her recused from further proceedings in the case because of “significant irregularities” in her handling of the charge to the jury – which found in American’s favor.
Lawyers for American said the irregularities were anything but significant. They acknowledged that Fitzpatrick gave the jury the wrong version of the jury charge to sign – one that included an instruction the judge previously agreed to delete – but not until after the jurors had already reached their decision, based on the proper set of jury instructions, which they also had.
“We are here about a typo,” said Shauna J. Wright of Kelly Hart & Hallman in Fort Worth, American’s lead attorney in the case. She said no evidence showed that Fitzpatrick’s “impartiality might be reasonably questioned” or that she “has a personal bias or prejudice concerning the subject matter or a party,” the two grounds for recusal cited in Goesling’s motion.
“There’s not even smoke, much less a fire,” Wright said.
Goesling’s legal team is led by J. Robert Miller Jr. of Miller Bryant in Dallas.
After deliberating over three days, the jury on May 11 cleared American of responsibility for a British celebrity chef’s sexual assault of Kimberly Goesling in her hotel room during a 2018 business trip to Germany. The jury agreed that Mark Sargeant, a London chef working with American to develop in-flight menus, assaulted Goesling. But it rejected Goesling’s claims for damages from the airline. She contended that Brett Hooyerink, at the time a vice principal with American, plied Sergeant with alcohol and encouraged the chef’s physical advances against her.
The jury instruction at issue involved the question of “assisting and participating” liability on American’s part.
It read: “You are instructed that, even if Brett Hooyerink supplied Mark Sargeant with the means of committing a sexual assault, Brett Hooyerink is not liable if he has no reason to suppose that a sexual assault will be committed.”
At a conference with the judge May 9, Goesling’s lawyers objected to that instruction, and she agreed it should come out. But it somehow remained in one version of the jury charge, the one the jurors ultimately signed as the official record of their verdict.
Fitzpatrick’s court coordinator, her bailiff and the presiding juror in the case also testified Friday about the chronology of events surrounding the jury charge (or charges). Collectively, the four witnesses described what might be called a comedy of errors, if “comedy” meant “bunch.”
When she agreed to revise the jury charge May 9, the judge testified, she had already signed the earlier version, the one that included the rejected instruction regarding Hooyerink.
At that point, she said, the outdated, 20-page document “was supposed to be a throwaway,” but instead somehow ended up in her files. She testified that she didn’t know how that happened.
After agreeing to excise the challenged instruction, she said, she had a new, correct version of the charge printed. That was the version she read in court, gave to the jurors and lawyers, and signed as the new official charge. That was the original that was supposed to go into the jury room. Fitzpatrick testified that she doesn’t know why it wasn’t, or what became of it. “We don’t know where it is. It may have gotten shredded,” she said.
Fitzpatrick said she normally assigns her court reporter the task of making sure the jurors have the original jury charge, signed by her, on which they are to record their verdict. But on that day, she said, her court reporter called in sick, and she had to scramble to find a last-minute replacement. “It was a little chaotic that morning,” she said.
When the jurors reached their verdict May 11, they recorded it on one of the photocopies of the revised charge they’d been given. When the presiding juror summoned bailiff Brian Downey to the jury room and handed him the signed photocopy, he said they had to record their verdict on an original, not a copy, an edict he testified he later confirmed with the judge.
When he told Fitzpatrick what had happened, he testified, she retrieved what she thought was the proper original – from where, he said, he doesn’t know – handed it to him and told him to instruct the jurors to copy their findings and signatures from the photocopy to the “original.”
But the “original” she pulled turned out to be the earlier, outdated charge, the one she said should have been discarded.
After discovering that the “improper, harmful” instruction was in the charge the jurors signed, Goesling’s lawyers May 17 moved for a new trial. The next day, they moved to have Fitzpatrick recused, saying she shouldn’t be the judge who decides whether a new trial is warranted as a result of blunders made in her court. When she refused to recuse herself, the matter was assigned to Senior Judge David Peeples of San Antonio for disposition.
At the conclusion of a three-hour hearing Friday, Peeples said he expected to rule on the recusal motion “before the end of the weekend.”